Death
Penalty System Likened to Professional Sports Janet L. ConleyFulton County Daily
Report

October 13, 2000

The
United States' capital punishment system was compared to pro sports at
a conference Thursday calling for a national death penalty moratorium.

It wasn't a favorable
comparison.

The death penalty
has become entrenched "as a competition sport that pits prosecutors and
police investigators against defense lawyers, and pits aspiring politicians
against weepy, wimpy ivory-tower academics," says Anthony G. Amsterdam,
director of clinical and advocacy programs at New York University. Amsterdam
was addressing about 100 lawyers, legislators, journalists and others gathered
at Atlanta's Carter Center for the American Bar Association's "Call to
Action: A Moratorium on Executions."

Amsterdam called
for the halt in executions to give the lawyers involved time for reflection
outside of competitive conditions and to give states an opportunity to
revamp flawed capital systems that have led to, among other things, prosecutorial
misconduct, flouting of due process guarantees, racial discrimination and
the execution of people who were juveniles when they committed the crime
for which they were convicted.

Continuing executions
under the present system, he said, would be a "perennial Olympiad in which
states' lawyers and defense counsel strive to win their laurels and to
take their places beside John Wayne and the Marlboro Man on the billboards
of the American soul."

It was a lively beginning
to a conference about saving lives, or at least some lives.

Convened by ABA President
Martha W. Barnett, a partner in Holland & Knight's Tallahassee office,
the program is a more aggressive vocalization of a stance that the ABA
took in 1997, when it first called for the moratorium. Despite three years
of ABA policy, at present only one U.S. state -- Illinois -- has adopted
a death penalty moratorium.

PROBLEMS WITH
ADMINISTRATION OF DEATH PENALTY

In many of the other
states, Barnett said, there still are problems with the administration
of the death penalty. She listed a lack of competent counsel, inadequate
funding for counsel, racial and geographic discrimination, and a shift
from "procedural guarantees to procedural niceties."

Lawyers are called
to action, Amsterdam said, because "like it or not, the power and responsibility
to administer decisions of life or death have been put into the hands of
lawyers."

So far, according
to speaker James S. Liebman, a law professor at Columbia Law School, lawyers
and judges aren't doing the greatest job.

Citing a study of
capital cases between 1973 and 1995, Liebman said data showed that 68 percent
of all capital judgments were so flawed, they could not be carried out.
In 26 states, the reversal rate for capital convictions was 52 percent
or higher. The error rate in capital cases also was high, he said, ranging
from a low of 18 percent in Virginia to a high of 91 percent in Mississippi.
Georgia's error rate was 80 percent.

Of the documented
errors in Georgia, 80 percent were significant, he said. For example:

• 39 percent involved
ineffective assistance of counsel;

• 20 percent involved
misinstruction of juries;

• 19 percent involved
prosecutorial misconduct; and

• 4 percent involved
biased judges or juries.

Imagine what would
happen if jets or tires had this level of errors, defects or failures,
Liebman said.

David I. Bruck, a
Columbia, S.C., sole practitioner who works part-time for the Federal Death
Penalty Resource Counsel, said the federal capital system is no better.

Despite better pay
for federal defenders and a three-tier review of prosecutorial discretion,
a U.S. Department of Justice census showed severe racial disparity in the
system, said Bruck. Seventy-five percent of those indicted for crimes eligible
for capital punishment are minorities, and 79 percent of those on federal
death row are minorities, he said.

As of now, 19 people
on death row were sentenced by federal courts. This autumn, the federal
system is scheduled to conduct its first executions since certain capital
crimes were federalized beginning in 1988. Is this what we want the face
of United States' justice to look like? Bruck asked.

Justice hasn't looked
good in some of the cases that the ABA speakers discussed.

WHILE LAWYER SLEPT

Amsterdam mentioned
Texas defendant Calvin Burdine's case in which, on June 5, a deputy solicitor
general argued to the 5th U.S. Circuit Court of Appeals that Burdine had
received effective assistance of counsel even though his defense lawyer
admittedly slept through substantial portions of his trial. The 5th Circuit
has not yet decided the case.

Steven B. Bright,
director of the Southern Center for Human Rights, a group that defends
death row inmates and others, gave another specific example of the system's
unfairness to capital defendants.

He mentioned Exzavious
Gibson, a Georgia defendant whose IQ has tested at between 76 and 82. When
Gibson asked for a lawyer at his first post-conviction hearing, he was
told by a Butts County judge that he wasn't entitled to a state-paid attorney.

"Of course, the state
was not represented by someone with an IQ of 82," Bright said. "As far
as we know."

Speaker Michael McCann,
the district attorney for Milwaukee County and the lawyer who prosecuted
serial killer Jeffrey Dahmer, said a moratorium on executions is needed
to give jurisdictions time to take a close look at their problems, particularly
suppression of evidence.

USE HALT IN EXECUTIONS
FOR 'AUTOPSY' OF CASES'

McCann suggested
using moratorium time to perform what he called "an autopsy" of the capital
cases that went wrong.

He also recommended
considering criminal penalties for prosecutors who engage in misconduct
or suppression of evidence, establishing a written policy in Das' offices
about discovery and creating internal penalties for noncompliance; creating
open discovery rules allowing defense attorneys access to prosecutors'
materials; having judges or the bar impose sanctions on prosecutors who
conceal evidence, and barring DAs who conceal evidence from ever trying
another capital case. There are arguments against a moratorium on executions.

As Bruck pointed
out, one of those sentenced to die under the federal system is Timothy
J. McVeigh, convicted of the 1995 bombing of the Alfred P. Murrah Federal
Building in Oklahoma City. The bombing killed 168 people and injured 850.

Although any delay
in carrying out that sentence would be very unpopular, a moratorium still
is warranted because "You look at whether the rate of error, the rate of
fairness, is acceptable," he said.

Another speaker,
Lawrence C. Marshall, a Northwestern University law school professor and
director of the Center for Wrongful Convictions, described the moratorium
this way: "This isn't about whether you support the death penalty. It's
about whether you support the death penalty for the guilty."